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Domestic Violence in Classical Halakhic Sources

May a Husband Beat His Wife? Classical Halakhic Sources on Domestic Violence

The question "Have you stopped beating your wife?" is used as a classic example of a question which cannot be properly answered "yes" or "no," since saying "yes" is an implicit admission that one had been beating his wife, and answering "no" can be taken as an admission that one continues to beat his wife. Unfortunately, ten percent of the husbands in Israel may properly answer this question "yes" or "no," because as many as ten percent of the husbands in this country beat their wives.1 In the same way that many people wish to deny the existence of the problem today, so too writers of Jewish history have sought to minimize or deny the incidence of wife-beating in the past.2

Whether or not the incidence of wife-beating among Jews has compared "favorably" with that among other groups, it has been sufficient to generate a significant body of halakhic (Jewish legal) literature over the centuries. Due to the unusual nature of the crime, legal principles and devices are pushed to their limits, with some remarkable results. Thus we see courts accepting testimony (of a sort) of women and of relatives of the plaintiff, a presumption of guilt, the attempted creation of a new category of separation without divorce, forced divorce, court-sanctioned torture, use of non-Jews as agents of the court, and women owning real estate completely independent of their husbands’ control, among other phenomena.

All of the major codes of halakha deal with legal principles that jurists apply to this specific type of crime. Among the major sources on this issue are a series of responsa by Rabbi Shlomo ben Avraham Adret (Rashba, c.1235 – c.1310 Barcelona),3 a decree (gezera) by Rabbenu Perez ben ‘Eliyahu (13th century, Corbeil),4 and a pair of responsa by Rabbenu Binyamin ben Matityahu Zev (born c. 1510, Turkey).5 This article discusses several aspects of the Rabbis’ response to wife-beating, including general moral judgments, claims of damages, purpose and mode of court intervention, presumption of guilt, forcing divorce, and conduct toward a "wicked wife."

This article can be a window into past legal development to serve as a basis for understanding the continuing development of halakhic and societal treatment of domestic violence. Readers wishing a modern halakhic response to domestic violence are referred to Rabbi Elliot N. Dorff, Teshuvah: Family Violence (New York: Committee on Jewish Law and Standards of The Rabbinical Assembly), 1995 (212-678-8060; rabassembly@jtsa.edu).

Moral Judgments

The Talmud Bavli (edited 8th century C.E.) contains numerous admonishments and recommendations pertaining to a husband’s relations to his wife: "A man should not project excessive fear in his household" (Gittin 6b); "Rabbi Helbo said: A man should always be careful in respecting his wife, for any blessing found in his home is only on account of her, as Scripture states: ‘And because of her [Sarai] it went well with Avram'(Gen. 12:16)" (Baba Mezia 59a); "Our Rabbis taught: Concerning one who loves his wife like his own body [or, self] and respects her more than his own body, Scripture states: ‘You shall know that your home is safe, and you shall inspect your fold and miss nothing’ [or, ‘and not sin’] (Job 5:24)" (Yevamot 62b). This last example becomes, in Maimonides’ MishneTorah (written 1177-1182), "Thus commanded the Sages: A man should honor his wife more than his own body and love her like his own body."6

Similarly, the Rabbis have much to say about relations between one person and another in general, beyond emphasizing the Biblical dictum "You shall love your neighbor as yourself." Hitting another person is discussed in many sources. Rabbi Moshe ben Yacaqov (early to mid-13th century, Coucy) in his BigBookofMitzvahs (SMa”G) gives a typical pronouncement on the topic.

It is forbidden for a person to injure either himself or another; and not only to injure but also anyone who hits another Jew — whether child or adult, man or woman — to disgrace them, such a person transgresses a prohibition, as Scripture states, "Do not add [to the required number of lashes]" — if the Torah warns not to add blows to a guilty person, how much more does this apply to an innocent person. Even to raise one’s hand against another, even if one doesn’t actually hit him or her, is called wicked, as Scripture states, "And he said to the wicked one, Why do you hit your neighbor?"7

Rabbenu Perez, in his decree, cites a responsum of Rabbi Yizhaq which states that "he has it on the authority of three great Sages, namely R’ Shemuel, R’ Ya`aqov Tam, and R’ Yizhaq, the sons of R’ Meir, that one who beats his wife is in the same category as one who beats a stranger." Likewise, Rabbi Moshe ben Yisrael Isserles (RaM”A, 1530-1572 Krakow) in his gloss on the ShulhanArukh notes that "a man who hits his wife transgresses as one who hits his neighbor."8

Indeed, hitting or beating one’s wife is sometimes specifically condemned as being worse than hitting someone else. For example, Binyamin Zev has it that

one who acquires a Hebrew maidservant is like one who acquires a master; how much more so with one’s wife, for anyone that hits her transgresses ‘do not add’ and his punishment is greater than one who hits his neighbor. …In my humble opinion, there is no one who transgresses a Rabbinic Ordinance (taqana) more than one who beats his wife and denigrates her.9

Many sages declare about wife-beating that "this is something not done by Jews" (see note 2). In saying this they do not deny the fact that wife beating occurs, but rather intend to make it clear that such behavior is not acceptable within Jewish society. The intensity of their opposition to wife beating is demonstrated by the severity with which wife beaters are treated in law, described below.

Damages

The rule that one who beats one’s wife falls into the same sort of legal category as one who beats a stranger can be traced back further than Rashi’s grandsons. Indeed, it goes back at least to the Mishnaic period. The Mishna in BabaQama chapter 8 delineates five kinds of damages that may be claimed against one who injures one’s neighbor, viz. bodily injury, suffering, medical expenses, lost income and disgrace. Remarkably, it specifies that these apply to all sorts of persons, such as mother, friend, gentile male slave, blind person, child, poor person, and even distinguishes between one’s own slaves and those of others, but for whatever reason, ‘one’s own wife’ is absent from the list. The Tosefta, however, does specifically mention a wife:

One who injures his wife, whether he injures her himself or others injure her, pays the expense and buys real estate with it, and he [the husband] enjoys the usufruct. R’ Yehuda ben Petera [sic.] says: For the private disgrace, she gets two- thirds and he gets one-third; for the public disgrace, he gets two-thirds and she gets one-third; for his share, they give it to him, and for hers, he buys real estate and he enjoys the usufruct.10

In his MishneTorah, Rambam says that when a husband injures his wife, he pays for three types of damages: all the bodily injury, suffering and all the disgrace. He rules further that the husband does not enjoy the usufruct, and indeed the wife has full control over this property.11 As some jurists point out, medical expenses and lost income are not included among the damages because a husband is always responsible for his wife’s medical expenses, and because he gets her income anyway.12

Whether or not the husband should enjoy the usufruct is discussed in numerous sources. The BigBookofMitzvahs expresses surprise at Rambam’s position and quotes the Tosefta’s opinion that the husband enjoys the usufruct.13 In contrast, Rabbi Yosef Karo (b. 1488), in his KesefMishna on the Rambam cited above, seems to support the view of Rabbi Ya`aqov ben Asher (1270-1343) in his Tur where he says in the name of the Geonim that the withholding of the usufruct from the husband is a fine imposed by the Rabbis, thus reconciling Rambam with the Tosefta.14 Rabbi Yoel ben Shemuel Yafe Sirqis (16th – 17th centuries, Poland), in his notes on the Tur, concurs.15

The application of this to the case of wife-beating is made explictly by Yisrael Kremz (14th century, Austria) in his Hagahot Asheri.16

Court Intervention

The court’s approach to wife-beating appears to have several aims. One is to effect reconciliation; another is to stop the beating in any case. Should that fail, the court wants to be in a position of knowing who is at fault so that it can assign damages, levy fines, collect alimony, or take other appropriate action.

One of the earliest sources on the court’s response to a claim of wife-beating is a responsum attributed to Rav Yosef ibn Evyatur, in the 10th or 11th century. The case is of a woman who claims that her husband beats her and begrieves her. Rav Yosef responds:

Be informed: If it is established by witnesses that he hit her time and again, the court is obligated to chastise him and say to him, "We hereby inform you that you are not allowed to hit her and if you repeat your cruelty she will be divorced with full alimony." They leave her with him along with an observer (ne’eman), and if he repeats his cruelty she is divorced with full alimony.17

Rashba gives a similar response to a similar case:

Thus wrote the Geonim in their responsa on cases like this that we placate her once or twice, and if she continues to complain we place between them a man or woman to be an observer. If that is impossible, we place a ban (mahrimin) on whomever does this. This case and those like it are dealt with as the judges see fit according to the place and time and people.18

A comparable degree of judicial discretion is suggested by the strong measures advocated by Rabbenu Simha ben Shemuel:

One who beats his wife…should be put under a ban and ostracized and strapped and punished with all kinds of torture, even chopping off his hand if he is persistent in beating her….19

Occasionally the question is raised of whether the court can force the husband to take an oath or swear to stop beating his wife. The answer depends more on the jurists’ view of oaths than on their view of wife-beating.20

Presumption of Guilt

Significantly, Binyamin Zev, citing a responsum of Rashba quoted in a responsum attributed to Moshe ben Nahman (Ramban, 1194-1244, Spain and Israel), says that if the husband is a known wife-beater, he is not believed if he claims that she is the cause of the conflict; that is, the wife’s claim is presumed to be justified until proven otherwise. However uncertain may be the attribution of this opinion to Rashba, Binyamin Zev formulates his own position in these words: "If it is not known to the court that the wife is the cause, and if she is not under the presumption of being a ‘loose woman,’ it should be said that he is the cause."21 Moshe Isserles, in his notes on the ShulhanArukh, as well as Rabbi Mordekhai ben Hillel haKohen (13th century, Ashkenaz) citing a responsum of his teacher Rabbi Meir of Rothenberg, rule similarly.22 Many sages add, however, that if the wife refuses to stay with her husband under the observer, at least in some cases this presumption is nullified and she may be divorced without alimony.

Forcing Divorce

One of the major issues raised in our sources is whether the court can compel the husband to grant a divorce in the case of wife-beating. The Mishna in Nedarim lists several circumstances under which the court can force a husband to divorce his wife, and the Talmud elaborates on these cases, but wife-beating is not specifically mentioned as grounds for forcing divorce. Forcing divorce is viewed as an extreme judicial measure, and is in fact later endorsed for this type of case. According to the responsum of Yosef ibn Evyatur, the court may compel divorce:

Even though it has been found to be true that he hit her repeatedly as you described, we don’t force the husband to give her a bill of divorce and to pay her alimony until the court and the community leaders have warned him (`ein anu kofin et ha-ba`al liten la get u-le-hagbotah ketubata `ad she-yitru bo) … and when he receives the warning and he is made to wait under the observer, if the observer testifies that he repeated his violence we collect her alimony for her.23

Rashba seems to conclude similarly in one of his responsa.24 Moreover, Rabbenu Simha ben Shemuel, cited in many sources, states explicitly that the court may turn to gentiles to force him to do the court’s bidding, i.e., to grant her a bill of divorce; this is specifically advocated by several other sages as well. He argues that if a man can be forced to divorce for not supporting his wife — a case where the court could confiscate his property — he certainly could be forced for beating her, which is a situation that can not be remedied by monetary means.25

Yosef Karo, in his BeitYosef, cites the famous responsum of Rabbenu Simha, but rejects its conclusion:

In any case, it appears to me that we should not accept the opinions of SeferAguda and Rabbenu Simha, and we should not force divorce on account of matters that were not found in the writings of any major jurist.26

Binyamin Zev, who supports the court’s power to force divorce in cases where the husband is clearly in the wrong and insists on continuing to beat his wife, points out that the fact that the Mishna and Talmud do not specifically list wife-beating by no means eliminates it as grounds for forcing divorce; indeed, inasmuch as the examples listed in the Mishna and Talmud are conditions which have come about involuntarily, e.g., the husband develops boils, it stands to reason that when the husband is intentionally causing suffering to the wife, divorce certainly can be forced by the court.27

Isserles brings only one opinion on this point in his gloss on the Shulhan `Arukh:

If he does this habitually the court is authorized to chastise him and to ban him and to strap him with all sorts of punishment and compulsion and make him take an oath that he will not do it anymore, and if he does not obey the court, there are those who say that they force him to divorce as long as they give him one or two warnings first.28

Rabbenu Perez, in his 13th-century decree, stops short of calling for compulsory divorce. Instead, he writes,

If anyone will stubbornly refuse to obey our words, the court of the place to which the wife or her relatives will bring complaint shall assign her maintenance according to her station and according to the custom of the place where she dwells. They shall fix her alimony as though her husband were away on a distant journey.29

Dr. Louis Finkelstein explains that "R. Perez wanted to introduce into Jewish law the principle of separation without divorce; since the husband would not treat his wife properly, she would be freed from her duty of living with him, yet he would be compelled to support her."30

Overall, it may be observed that almost all of the sources examined allow the court to force divorce in this extreme case of intolerable marriage. Even Binyamin Zev, who opposes forced divorce in other cases, allows for it in this case.31

Wicked Wife

So far we have been discussing cases where the husband is beating his innocent wife. But what if the wife is not so innocent? Can the husband beat her? According to Rambam, "Any woman who refuses to do one of the jobs she is obligated to do is forced to do it even by the rod." The context provided by the subsequent sentence suggests that this beating is done by the court, or at least at the court’s directive, rather than on the husband’s initiative: "If he says that she is not doing it but she says that she is not refusing to do it, a woman is placed between them, or neighbors. And this matter goes according to what the judge sees is possible in the matter (she-yire ha-dayan efshar be-devar)."32

In his notes on the Rambam, Rabbenu Avraham ben David of Posquieres (Raabad, 1120-1198) takes exception to Rambam’s formulation: "I have never heard that the rod is inflicted on women; rather, her financial support and food are reduced until she gives in."33 Rabbi Shem Tov ben Avraham ibn Gaon (14th century, Spain) comments that "This is an old dispute" and concludes that the judge must use his discretion, whether that means using words or curses or even the rod to compel compliance with judicial directives.34

Rabbi Vidal de Tolusha (14th century, Spain) cites the Rashba and Ramban as holding the same position as the Rambam, and he himself affirms it; he then observes that some of the early scholars (rishonim) held that such a wife is ostracized; and finally, he quotes the Raabad’s note without further comment.35 Most of the discussion about the wife who refuses to do her work focuses on whether she has the right to do so, and under what circumstances, rather than on the question of whether the court or the husband can force the wife to do her job by using the rod.

There is one case in which the husband is explicitly permitted to hit his wife. Rabbi Yisrael ben Petihyahu Isserlein (1390-1460) was sent this question:

One who heard his wife cursing and denigrating her father and mother and chastised her verbally for it several times to no avail — is he permitted to hit her in order to rebuke her that she should not do this, or not?

In his answer, citing the Mordekhai and the responsum of Rabbenu Simha, Isserlein points out that hitting one’s wife is normally a serious transgression, but permits it in this case in order to prevent the woman from violating another serious prohibition. Since, Isserlein argues, it is established that a man may strike his slaves in order to prevent them from committing a transgression, there is a principle that "whomever is the ward (tahat yado) of someone, and he sees that he is committing a transgression, he is permitted to strike him and chastise him in order to keep him from the transgression, and there is no need to take him to court." This, of course, would apply to one’s wife.36

Writing a century later, Isserles offers a similar ruling:

But if she curses him or denigrates his father and mother, and he rebukes her verbally but she pays no attention to him, there are those who say that it is permitted to hit her, and there are those who say that it is forbidden to hit even a wicked woman; and the first view is the principal one.37

As we have seen above, several sources state that when a case of wife-beating is taken to court, the wife’s claim may be presumed to be justified. This, along with the fear of severe judicial and financial repercussions — and prevailing social attitudes — could tend to limit the extent to which these rulings would be seen as a green light for hitting one’s wife. Clearly, the intent of those who permit hitting is to prevent transgression; thus hitting as a punitive measure would be disallowed under the ‘do not add’ stricture. It is questionable in any case whether striking one’s wife in anything less than a life-and-death situation could actually be a constructive act. Just as "a mitzvah draws forth another mitzvah, and a transgression draws forth another transgression,"38 so too does one violent act draw forth another violent act. It would be instructive to know what actually happened to couples to whom Isserlein’s ruling was applied.

It may be worthwhile to keep in mind the values expressed by Epstein most recently in the `Arukh HaShulhan:

The principle of the law holds even today when we do not have the power to properly follow the law; in any event we investigate thoroughly and try to make peace between husband and wife, and if we see that it is impossible to make peace between them, we try to get them, by way of a bill of divorce, to divorce each other out of goodwill (she-yigarshu ze et zot me-ritzonam hatov).39

Notes

2. Louis Finkelstein writes, for example, that “This crime [wife-beating] was one that rarely, if ever, gave trouble to Jews of the Middle Ages.” Jewish Self-Government in the Middle Ages, (New York: Jewish Theological Seminary, 1924) p. 70. Israel Abrahams, in his Jewish Life in the Middle Ages, (New York: Jewish Publication Society, 1896) p. 89, quotes Rabbenu Tam in a similar vein: “Rabbi Tam, in framing his regulation cited above, says of wife-beating: ‘This is a thing not done in Israel.'” However, Rabbenu Tam’s statement, echoed by many of his successors, seems in context to be proscriptive rather than descriptive.

4. Quoted in its entirety by Finkelstein, p. 216-217. Although Finkelstein writes that “We never hear of the Takkanah elsewhere” (p. 71), it is in fact quoted in full in Binyamin Zev, no. 88 p.249 (see note 5 below), which was published in 1539 and reprinted in 1959. It is also quoted in Menahem Elon’s HaMishpat HaIvri.

18. Rashba, sec. 264. The observer prescribed by Isserles seems to be a woman: “moshivin beinehen aherot,” (Even HaEzer, hilkhot gittin 154:3). Rabbenu Simha, as quoted by Binyamin Zev p. 247, says one or two people serve as the observers or referees. Rambam, in a related case, has “a woman or neighbors” fill this role (Sefer Nashim hilkhot ishut 21:10).

26. Karo at Tur, Even HaEzer, hilkhot gittin, 154. It is not completely clear that Karo intends to reject Rabbenu Simha’s view in its entirety.

27. Binyamin Zev, p. 248. Eliyahu of Vilna (1720-1797), the Vilna Gaon, makes a similar point in his comment on the ShulhanArukh at Even HaEzer, hilkhot gittin, 154:3 sec. 10. DarkeiMoshe also cites Binyamin Zev’s reasoning and conclusion at Tur,Even HaEzer, hilkhot gittin,154:15-17. The Mordekhai uses the same reasoning on a similar point in his comment at the very beginning of Ketubot, pereq ha-madir.

28. 27 Isserles at Even HaEzer, hilkhkot gittin, 154:3. Epstein `Arukh HaShulhan, Even HaEzer, hilkhot gittin, 154:18 brings this opinion of Isserles as well to represent the principle of the law. Rabbi Isaac Klein, in AGuidetoJewishPractice (New York: Jewish Theological Seminary, 1979), p. 471, gives a significantly different version of Isserles: “…if he refuses to obey the order of the court, they will compel him to divorce his wife at once (though some are of the opinion that he should be warned once or twice)….” Klein has the “though some are of the opinion” in a different place. This is under Klein’s heading “The wife may sue for divorce on the following grounds.” Klein’s reading is grammatically and syntactically possible.

29. In Finkelstein, pp. 216-217.

30. Finkelstein, pp. 71-71.

31. Binyamin Zev, sec. 116, no. 315-317.

32. Rambam Sefer Nashim, hilkhot ishut, 21:10.

33. Raabad on Rambam Sefer Nashim, hilkhot ishut, 21:10.

34. Migdal `Oz on Rambam Sefer Nashim, hilkhot ishut, 21:10.

35. MagidMishna on Rambam Sefer Nashim, hilkhot ishut, 21:10.

36. Terumat HaDeshen, Benei Beraq Israel, 1981, sec. 118.

37. Rama on Shulhan `Arukh, Even HaEzer, hilkhot gittin, 154:3.

38. Ben Azzai, Avot 4:2.

39. `Arukh HaShulhan, Even HaEzer, hilkhot gittin 154:18. The language makes it sound like divorce is a fully bilateral act.